Opinion
No. 19571. Department One.
March 29, 1926.
CONTRACTS (145, 150) — PERFORMANCE OF EXTRA WORK — AGREEMENT BY ARCHITECTS — ACCEPTANCE OF PERFORMANCE. Owners can not complain that the architects' agreement to allow, as an extra, for concrete work in addition to that shown by the drawings, if necessary to carry the footings down to solid bearings as required by the contract, where they referred the contractor to the architects to negotiate the contract, the agreement for the extra was made before the contract was signed, and was ratified by acquiescence in payments as the work progressed.
Appeal from a judgment of the superior court for King county, Truax, J., entered July 8, 1925, upon findings in favor of the plaintiff, in an action on contract, tried to the court. Affirmed.
Howard O. Durk, for appellants.
Robert A. Devers, for respondents.
This is an action to foreclose a lien for labor and material furnished under a contract for the construction of a building. The plaintiffs had judgment below for $619.60, interest and costs, and the defendants have appealed.
The agreement between the parties consists of three documents, i.e., the building contract, the drawings and the specifications, and the amount recovered was allowed as an extra.
In brief, it is appellants' contention that the drawings, which state the exact depth of the excavations to be made for the column footings, are controlled by the provisions of the contract and specifications, which require the footings to be carried down to solid bearings, and though it was necessary to place the footings at a much greater depth than that named in the drawings, still that work was required under the contract, read as a whole, and should not have been allowed as an extra under authority of Wade v. Tacoma, 131 Wn. 245, 230 P. 99, and other like cases. The rule announced in the Wade case is sound and we fully adhere to it, but in this record we find a state of facts which makes that rule inapplicable.
It appears that, before the contract was let, respondents were engaged to do certain grading and preliminary work, with the understanding that if they did not secure the building contract they would be paid for such work. Thereafter, when respondents went to the appellants to secure the contract, they were directed to go to a firm of architects — who had been employed by appellants to prepare the necessary drawings, plans and papers and to let the contract — and told to negotiate with them for the purpose of securing the contract. Then and there the respondents discovered the possibility of conflict between the drawings and the specifications, and refused to enter into the contract as prepared, unless assured that, if the footings had to be of a greater depth than that shown on the drawings, they would be paid for the additional labor and material as an extra under the contract. Thereupon the architects wrote and delivered to respondents the following letter:
"Stuart Wheatley Architects 426-427 Walker Building Seattle Oct. 1st, 1923
"Messrs. Sylliaasen Sando
"Dear Sirs:
"It is understood that if more concrete is needed than shown on the plans of Mr. Kalberg's building: — concrete necessary in foundation walls so that they are down to satisfactory bearing same will be considered an extra, should less concrete be used than shown owner is to get credit for same. Cost of this extra concrete to be figured at the rate of nine dollars per yard for concrete and 15c per surface foot for form work.
Yours truly, "B. Dudley Stuart for Stuart Wheatley
"P.S. The extra would also cover any extra work necessary. B.D.S."
With that assurance, respondents signed the contract and entered upon the work. It is true that appellant Kalberg testified that he had not authorized the writing of this letter and knew nothing of it until long afterwards — he not being present when respondents signed the contract — but bills for the extra foundation work were allowed by the architects as the work progressed, and eighty-five per cent thereof was paid from time to time with the estimates under the contract, and without protest until the time for final settlement arrived.
[1] It is urged that, under the terms of the building contract, the architects had no authority to make any such change therein, and various provisions of the contract are pointed out which define and limit the powers and duties of the architects; but the contract cannot govern upon this matter, because the so-called change or modification was made before the contract was executed or took effect, and at that time the architects were acting as the general agents of the appellants to let the contract, with power to bind their principals to the extent of their apparent authority. Appellants, having themselves directed the respondents to go to the architects for the purpose of negotiating a contract, and having then placed no limitations upon the powers of the architects, are not now in a position to urge that anything found necessary to be done to the end that the contract be let, was beyond the apparent scope of the authority of the architects. Furthermore, the failure to object promptly, and the payment of eighty-five per cent of the amount of such extras as the work progressed, was a sufficient ratification to bind the appellants.
Error is assigned upon the admission in evidence of Exhibit C, the letter which we have quoted, but what we have already said disposes of that question.
Error is also predicated upon the denial of appellants' counterclaim for damages caused by delay in completing the building. The questions thus raised are of fact only, and after a careful study of the evidence we find nothing which will warrant our disturbing the results reached by the trial court.
The judgment appealed from is affirmed.
MAIN, MITCHELL, and FULLERTON, JJ., concur.
While I cannot give assent to what is said reaffirming Wade v. Tacoma, supra, I fully concur in the result herein.